Skinner v. Winfrey

          OPINION AND ORDER

          JAMES H. PAYNE UNITED STATES DISTRICT JUDGE.

         This is a 42 U.S.C. § 1983 civil rights action commenced by Plaintiff Michael Wayne Skinner, a state inmate appearing pro se and proceeding in forma pauperis. Skinner claims Defendants Heath Winfrey and Robin Livingston violated his constitutional right to adequate medical care by failing to timely schedule an operation to repair a fracture in his left arm while he was incarcerated at the Craig County Jail in Vinita, Oklahoma. Before the Court are two motions: Defendants' motion for summary judgment (Dkt. 41) and Defendants' motion for discovery sanctions (Dkt. 42). Skinner did not respond to either motion. For the reasons discussed below, the Court finds Skinner has not demonstrated a constitutional violation and thus cannot overcome Defendants' assertion of qualified immunity. The Court therefore grants Defendants' motion for summary judgment. The Court finds, however, that the circumstances of this case do not support Defendants' request for discovery sanctions and thus denies their motion for sanctions.

         BACKGROUND

         Skinner is currently incarcerated at the Mack Alford Correctional Center (MACC) in Stringtown, Oklahoma. However, when he commenced this action in April 2018, Skinner was incarcerated at the Craig County Jail (CCJ) in Vinita, Oklahoma. Dkt. 1, Complaint, at 1;^[1] Dkt. 41, Motion for Summary Judgment, at 13, ¶ 30. Winfrey is the Sheriff of Craig County, and Livingston is the CCJ's former Jail Administrator. Dkt. 41, Motion for Summary Judgment, at 7, ¶ 1. Skinner was incarcerated at the CCJ for two periods relevant to his claim: from January 2, 2017, until January 20, 2017, and from January 22, 2017, until May 22, 2018. Id. at 7-8, 13, ¶¶ 2, 3, 5, 30.

         Several months before he was arrested and held at the CCJ, likely in mid-2016, Skinner was hit in the left arm with a baseball bat. Dkt. 41-1, Plaintiff's Deposition, taken January 10, 2019, at 7. When Skinner was first booked into the CCJ on January 2, 2017, CCJ officials completed a medical assessment and found no visible signs of trauma or obvious pain requiring immediate treatment. Dkt. 41, Motion for Summary Judgment, at 7, ¶ 3; Dkt. 41-3, Medical Questionnaire, dated January 2, 2017, at 1. During the assessment, Skinner reported that he had no medical problems other than a possible MRSA infection. Dkt. 41-3, at 2. Skinner was released from the CCJ to the custody of Ottawa County on January 20, 2017. Dkt. 41, Motion for Summary Judgment, at 8, ¶ 4. While he was held at the Ottawa County Jail, Skinner did not complain to anyone about pain in his left arm. Dkt. 41-1, Plaintiff's Deposition, taken January 10, 2019, at 10. When Skinner returned to the CCJ on January 22, 2017, CCJ officials completed a second medical assessment and found no visible signs of trauma or obvious pain requiring medical treatment. Dkt. 41, Motion for Summary Judgment, at 8, ¶¶ 5, 6; Dkt. 41-5, Medical Questionnaire, dated January 22, 2017, at 1. During that assessment, Skinner reported that he had no medical problems other than a MRSA infection. Dkt. 41-5, at 1-2. He also reported that he had been either hospitalized or treated by a doctor five weeks prior for some unspecified condition. Id. at 3.

         On April 19, 2017, Skinner was involved in a fight with two inmates. Dkt. 41, Motion for Summary Judgment, at 8, ¶ 7; Dkt. 41-6, Craig County Jail Incident Report, at 1. He received a bite mark to his forehead and lacerations to his right elbow, left knee, and left foot. Dkt. 41-6, at 1. A nurse at the CCJ evaluated Skinner's injuries. Id. Based on the nurse's recommendation, Winfrey directed CCJ staff to transport Skinner to the emergency room for evaluation and treatment. Id. At the emergency room, Skinner's bite wound and abrasions were cleaned and treated and he was prescribed two medications. Dkt. 41, Motion for Summary Judgment, at 8, ¶ 9. At that time, Skinner did not complain of any pain in his left arm and no x-rays were ordered. Id.; Dkt. 41-7, St. Francis Medical Records, at 1-16. After Skinner returned to the CCJ from the emergency room, CCJ medical staff administered his prescriptions as directed. Dkt. 41-9, Medication Administration Record, at 1.

         On June 21, 2017, Skinner complained of pain in his left arm and requested a medical appointment. Dkt. 41, Motion for Summary Judgment, at 8-9, ¶ 10; Dkt. 41-10, Sick Call Request Form, dated June 21, 2017, at 1. Skinner stated he had been experiencing pain in his left arm “for about three weeks.” Dkt. 41-10, Sick Call Request Form, dated June 21, 2017, at 1. Eight days later, on June 29, 2017, Sheriff's Deputy Frank Nellen transported Skinner to the Cherokee Nation Vinita Clinic. Dkt. 1, Complaint, at 4; Dkt. 41, Motion for Summary Judgment, at 9, ¶ 12. Kathryn Holloway, ARNP, examined Skinner. Dkt. 41-11, Office Clinic Notes, dated June 29, 2017, at 1. Skinner told Holloway he had been hit with a chair during an altercation that occurred six months before his clinic visit and that he did not receive x-rays at that time. Id.; see also Dkt. 4, Plaintiff's First Supplemental Pleading, at 6. Holloway ordered x-rays of Skinner's left arm and diagnosed him with “a non-union fracture of [his] left forearm.”^[2] Dkt. 41, Motion for Summary Judgment, at 9, ¶ 12; see also Dkt. 1, Complaint, at 4; Dkt. 41-11, Office Clinic Notes, dated June 29, 2017, at 3-4; Dkt. 41-12, Plaintiff's X-Rays, at 1. Holloway placed a splint on Skinner's left forearm, prescribed two medications to treat pain and muscle spasms, and sent Skinner's x-rays to an orthopedic specialist for further evaluation. Dkt. 41, Motion for Summary Judgment, at 9, ¶ 12. When Skinner returned to the CCJ after his clinic visit, CCJ medical staff administered his medications as directed. Id.; see Dkt. 41-13, Medication Administration Record, at 1-7.

         Skinner was transported from the CCJ to the Cherokee Nation Vinita Clinic on July 12, 2017, for a follow-up visit. Dkt. 4, Plaintiff's First Supplemental Pleading, at 12; Dkt. 41, Motion for Summary Judgment, at 9, ¶ 13. During that visit, Skinner told Jeffrey Gastorf, D.O., that his left forearm “injury started about 8 months ago when he was hit by a baseball bat” and that he did not have his arm evaluated at the time of the injury. Dkt. 41-14, Office Clinic Notes, dated July 12, 2017, at 1. Skinner reported “persistent” pain and weakness in his left arm. Id. Dr. Gastorf replaced the cotton and bandage on Skinner's splint and noted the next step would be to refer Skinner for an orthopedic consultation. Id.

         On July 14, 2017, the Cherokee Nation WW Hastings Indian Hospital (“Hospital”), in Tahlequah, Oklahoma, referred Skinner to The Orthopaedic Center (“Center”), in Tulsa, Oklahoma, for an orthopedic consultation. Dkt. 41, Motion for Summary Judgment, at 9, ¶ 14; Dkt. 41-15, Letter from Center to Plaintiff, dated July 25, 2017, at 1; Dkt. 41-16, Referral for Contract Professional Services, dated July 14, 2017, at 1. The referral form the Hospital sent to the Center indicates Skinner's left forearm fracture was, at that time, “6 to 8 month[s] old.” Dkt. 41-16, at 1.

         On August 9, 2017, Deputy Nellen transported Skinner from the CCJ to the Center for an orthopedic consultation. Dkt. 1, Complaint, at 4; Dkt. 41, Motion for Summary Judgment, at 10, ¶ 15. Brian Chalkin, D.O., confirmed that Skinner had a non-union left ulnar shaft fracture and recommended outpatient surgery. Dkt. 41-17, Surgery Checklist, at 1. Two days later, the Hospital approved Dr. Chalkin's request for a surgical referral. Dkt. 1, Complaint, at 9; Dkt. 4, Plaintiff's First Supplemental Pleading, at 5; Dkt. 41, Motion for Summary Judgment, at 10, ¶ 16; Dkt. 41-18, Referral, dated August 11, 2017, at 1. On August 22, 2017, the Center sent Skinner a letter, addressed to his home address, acknowledging receipt of the Hospital's approval and requesting that Skinner contact the Center to schedule his surgery. Dkt. 41, Motion for Summary Judgment, at 10, ¶ 17; Dkt. 41-20, Letter from Center to Plaintiff, dated August 22, 2017, at 1.^[3]

         Sometime after August 22, 2017, Skinner's sister, Sherryl Herndon, “hand delivered” the “paperwork” approving Skinner's surgery to Livingston at the CCJ. Dkt. 7, Plaintiff's Second Supplemental Pleading, at 1; Dkt. 41, Motion for Summary Judgment, at 10, ¶ 18; Dkt. 41-1, Plaintiff's Deposition, taken January 10, 2019, at 15-16, 21. Three weeks after Herndon delivered the paperwork to Livingston, Skinner asked Tricia Fleming, a nurse at the CCJ's medical facility, “what's going on with my arm.” Dkt. 41-1, at 21; see also Dkt. 1, Complaint, 3; Dkt. 7, Plaintiff's Second Supplemental Pleading, at 1. Fleming told Skinner that the paperwork had been “found on a desk in the Sheriff's Department.” Dkt. 1, Complaint, at 3; Dkt. 7, Plaintiff's Second Supplemental Pleading, at 1. Although Fleming did not say which desk, Skinner assumed it was Livingston's. Dkt. 41-1, Plaintiff's Deposition, taken January 10, 2019, at 21.

         On October 16, 2017, Fleming spoke with Angela at the Center regarding Skinner's left arm injury. Dkt. 4, Plaintiff's First Supplemental Pleading, at 3; Dkt. 41, Motion for Summary Judgment, at 10, ¶ 19. Angela advised Fleming that Skinner would need to obtain new referrals from the Hospital both (1) for another orthopedic consultation with the Center and (2) for any surgical procedure the Center may recommend. Dkt. 4, Plaintiff's First Supplemental Pleading, at 3; Dkt. 41-21, Craig County Medical Visit Log, dated October 27, 2017, at 1. Angela referred Fleming to the Hospital's coordinator who was not in the office on that date, and Fleming indicated in her notes that she would call the coordinator a few days later. Dkt. 41-21, at 1.

         Skinner submitted sick call request forms “to the nurse or jail administrator” on October 26, 2017, and October 27, 2017, asking when his operation would be scheduled and requesting an explanation for the delay. Dkt. 41, Motion for Summary Judgment, at 11, ¶¶ 20, 21; Dkt. 41-22, Sick Call Request Form, dated October 26, 2017, at 1-2; Dkt. 41-23, Sick Call Request Form, dated October 27, 2017, at 1-2. On October 31, 2017, Skinner was transported from the CCJ to the Center. Dkt. 41, Motion for Summary Judgment, at 11, ¶ 22. During that visit, the Center confirmed Skinner's diagnosis as a non-union fracture and noted that the Center was awaiting authorization from the Hospital to schedule Skinner's surgery. Id.; Dkt. 41-24, Return to Work/School Form, dated October 31, 2017, at 1.

         On November 30, 2017, Skinner complained of pain in his left arm and requested pain medication. Dkt. 41, Motion for Summary Judgment, at 11, ¶ 23; Dkt. 41-25, Sick Call Request Form, dated November 30, 2017, at 1. The next day, December 1, 2017, Skinner submitted a Craig County request form to Livingston, asking why his operation had not been scheduled. Dkt. 41, Motion for Summary Judgment, at 11, ¶ 24; Dkt. 41-26, Craig County Request Form, dated December 1, 2017, at 1-2. In response to the request submitted to Livingston, Fleming provided Skinner with ibuprofen. Dkt. 41-26, at 1. Fleming received Skinner's November 30 sick call request form on December 4, 2017, and again provided him with ibuprofen. Dkt. 41-25, at 1.

         Skinner was transported from the CCJ to the Cherokee Nation Vinita Clinic on December 6, 2017, for further evaluation. Dkt. 4, Plaintiff's First Supplemental Pleading, at 14; Dkt. 41, Motion for Summary Judgment, at 11, ¶ 25. Dr. Gastorf noted that Skinner “was previously seen by orthopedic clinic and was told that [his arm] needed repair but since patient was incarcerated patient needed to go through the jail system to get repair done.” Dkt. 4, Plaintiff's First Supplemental Pleading, at 14; Dkt. 41-27, Office Clinic Notes, dated December 6, 2017, at 1. Dr. Gastorf advised Skinner that the Cherokee Nation was no longer willing to pay for the operation given that Skinner was incarcerated and that Skinner would need to contact Livingston “to get the process started.” Dkt. 41-27, at 1. Dr. Gastorf prescribed ibuprofen for Skinner's pain. Id. When Skinner returned to the CCJ, CCJ medical staff administered the ibuprofen as directed. Dkt. 41-28, Medication Administration Record, at 1.

         Skinner submitted a sick call request form to Fleming on December 15, 2017, indicating the pain in his arm had increased, his lower forearm was “real sore, ” he was feeling pain in his left shoulder, and the pain medication would not “fix the problem.” Dkt. 1, Complaint, at 12-13; Dkt. 41, Motion for Summary Judgment, at 12, ¶ 26; Dkt. 41-29, Sick Call Request Form, dated December 15, 2017, at 1. Fleming received the form on December 19, 2017, and scheduled Skinner for an appointment with Curtis Phillips, D.O. Dkt. 41-29, Sick Call Request Form, dated December 15, 2017, at 1; Dkt. 41-31, Dr. Phillips' Office Notes, dated December 23, 2017, at 1.

         Skinner submitted a Craig County Request Form to Sheriff Winfrey on December 19, 2017. Dkt. 41, Motion for Summary Judgment, at 12, ¶ 27; Dkt. 41-30, Craig County Request Form, dated December 19, 2017, at 1. On the form, Skinner stated his pain was “getting worse” and he reminded Winfrey the x-rays taken in August and October had confirmed his arm was broken. Dkt. 41-30, at 1. Skinner further indicated his understanding that Craig County “is liable” for the operation while he is incarcerated and asked Winfrey to explain the delay. Id. at 1-2. Winfrey responded to Skinner's request on December 28, 2017, as follows:

I have included your medical records. The county would not be liable for your condition. You told us your arm was broken prior to you being incarcerated. The doctor stated your injury was 8 months or older in August. Your medical condition is pre-existing. I had agreed to help you get the surgery but never agreed I was paying the bill. I ...